Appeal 2007-1940
Application 10/362,942
glass ceramic materials and the properties thereof encompassed by the
appealed claims as a class distinguishes over the range of ceramic materials
described by Suzuki as a class. Indeed, the evidence presented is based on
compositions which differ only in the amounts of the same ingredients and
are not representative of appealed claim 23 and of the compositions
described Suzuki. Thus, the evidence does not provide reasonable assurance
that the same behavior shown for glass ceramic compositions 1-4
baked at 820°C would be exhibited by the myriads of compositions
described by Suzuki and prima facie encompassed by claims 21 and 23, as
we interpreted these claims above. Cf., e.g., In re Lindner, 457 F.2d 506,
508, 173 USPQ 356, 358 (CCPA 1972);3 cf. also, e.g., In re Clemens,
622 F.2d 1029, 1035-36, 206 USPQ 289, 295-96 (CCPA 1980); In re
Greenfield, 571 F.2d 1185, 1189, 197 USPQ 227, 230 (CCPA 1978). In re
Susi, 440 F.2d 442, 445-46, 169 USPQ 423, 426 (CCPA 1971).
Accordingly, we have again evaluated all of the evidence of
anticipation and of obviousness found in Suzuki with Appellants’
countervailing evidence of and argument for non-anticipation and
nonobviousness, including the evidence in the Schiller Declaration as relied
on in the Brief and Reply Brief, and based thereon, we conclude that the
3 Here only one mixture of ingredients was tested. . . . The
claims, however, are much broader in scope, covering mixtures
of numerous compounds, . . . [such] that there is no ‘adequate
basis for reasonably concluding that the great number and
variety of compositions included by the claims would behave in
the same manner as the [single] tested composition.’ [Citation
omitted].
Lindner, 457 F.2d at 508, 173 USPQ at 358.
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